14.1 伊斯兰教法学(Fiqh)
14.1 Fiqh (jurisprudence)
“Fiqh”在语言上的意思是理解,如《古兰经》中{……}所说。
Fiqh linguistically means understanding as in His saying
“我们并不太能理解(la nafqahu)你所说的许多内容” [TMQ Hūd: 91]
“We do not comprehend (la nafqahu) much of what you say” [TMQ Hūd: 91]
那就是说,我们并不理解。根据法学家的定义,fiqh(伊斯兰教法学)被界定为通过研究和推理(istidlal)所获得的一套次要(furu'iyya)的沙里亚(Sharī'ah)律例的知识。沙里亚律例(ahkām shar'iah)的知识,始于这些沙里亚律例出现之日,而那是在从麦加迁徙到麦地那(hijra)之后。这是因为真主的使者ﷺ被派遣,他在麦加停留了十三年,之后在麦地那居住了约十年,《古兰经》在这一整段时期内持续降示,而关于律例(ahkām)的经文则是在麦地那降示的。在这一时期,《古兰经》持续降示,使者ﷺ也会讲解与所发生之事相关的律例,以及针对随之出现的各种问题的解决之道。
That is, we do not understand. According to the definition of the legists, fiqh is designated as the knowledge of a body of subsidiary (furu’iyya) Sharī’ah rules acquired through study and eduction (istidlal). Knowledge of the Sharī’ah rules (ahkām shar’iah) began the day these Sharī’ah rules came to exist and that was after the migration (hijra) from Makkah to Madina. This is because the Messenger of Allah was sent and he stayed in Makkah for thirteen years then he resided in Madina for about ten years and the Qur’ān used to be revealed throughout this period, though the verses of ahkām were revealed in Madina. In this period the Qur’ān used to be revealed and the Messenger would talk about the ahkām relating to whatever they included in terms of events and relating to the solution for whatever problems that arose.
被启示于麦加的部分约占《古兰经》的三分之二,它们被称为麦加章节(makkiyy)。整体而言,这些经文几乎不涉及某一条具体的律例,而是局限于阐明宗教的根本,并号召人们信奉这些根本,例如信仰真主和祂的使者,相信末日,命令人们拜功,以及诚实、信托等道德品质的描述,还有禁止淫乱、杀人、活埋女婴、短斤少两等恶行。被启示于麦地那的第二部分约占《古兰经》的三分之一,它们被称为麦地那章节(madaniyy)。其中包括交易(mu'amalat)类的经文,如买卖、租赁和高利贷;属于刑律(hudud)的经文,如通奸和盗窃的刑罚;属于刑事惩罚(jinayat)的经文,如对故意杀人者的处决,以及对拦路抢劫者的惩罚;属于证据(bayyinat)的经文,如通奸的证人及其他各类作证的规定;此外,还有关于功修(‘ibadat)的其余律例,如斋戒、天课、朝觐和圣战,也都是在此期间降示的。由此可见,虽然拜功的规定是在麦加降示的,但它们并不构成一套完整的律例体系,而只是某一类律例的知识。至于麦地那降示的经文,则包含了全部的教法(ahkām),因此对这些律例的认识被视为伊斯兰法学(fiqh)。所以,我们更准确的说法是:伊斯兰法学始于麦地那;而由于法学由实践性的律例构成,这些律例正是为了处理已经发生的事件而降示的。 关于诸多律例的经文,大多与所发生的事件相关联。争讼者便会将裁决之事提交给安拉的使者ﷺ,他便依照安拉启示给他的法则在他们之间作出裁决;或者当出现需要解决的问题时,便会降下陈述该律例的一节或数节经文。这就是《古兰经》分次降示(munajjaman)的含义。因此,《古兰经》的启示中立法的一面十分明显。这些经文并不讨论可能发生的假设,而是讨论实际发生的事情,以及人与人之间实际存在的问题。《古兰经》持续降示,直至安拉的使者ﷺ前往至高的伴侣(al-rafiq al-a'la)的那一年。安拉使宗教臻于完善、圆满,并且启示给他ﷺ最后一节经文,即祂在《黄牛章》中的话:
The portion that was revealed in Makkah approximates to about two thirds of the Qur’ān and they are designated as the Makkan verses (makkiyy). In their totality they barely deal with a single hukm, rather they are confined to explaining the fundamentals of the deen and calling people to them, such as the belief in Allah and His Messenger , the Day of Judgement, the command to perform Salah, characterisation by moral attributes such as honesty, trust, and forbidding evil actions such as fornication, murder, burying girls alive, deficiency in the measure and scales etc. The second portion that was revealed in Madina is close to a third of the Qur’ān and they are designated as the Madinan verses (madaniyy). They are verses of mu’amalat (transactions) such as selling, renting and usury and from the hudud, such as the hadd of zina (fornication) and stealing, from the jinayat (capital punishments) such as killing the one who killed someone intentionally or punishment of highway robbers and from the bayyinat (testimonial evidences) such as the testimony of zina and the rest of the testimonies, as well the remaining rules concerning the worships (‘ibadat) such as fasting, zakah, hajj and jihad were revealed. From this it becomes clear that even though rules of prayer were revealed in Makkah they do not form a body of rules but knowledge of a type of rule. As for what was revealed in Madina, they consisted of all the ahkām, which is why knowledge of such rules is considered fiqh. Therefore, it is more accurate for us to say that fiqh began in Madina and since fiqh constitutes practical rules, they have been revealed to treat incidents that have taken place. The verses of ahkām more often than not were in connection to the events that had taken place, so the disputants would refer judgement to the Messenger of Allah and he would judge between them according to the rules that Allah had revealed to him or on the occasion of problems requiring solutions an ayah or ayaats stating the hukm would be revealed. This is what it means for the Qur’ān to be revealed gradually (munajjaman). Therefore, the legislative aspect used to be quite evident in the revelation of the Qur’ān. The ayaats did not treat assumptions that may happen; rather, they treated issues that actually took place and problems that actually take place between people. The Qur’ān continued to be revealed until the year in which the Messenger of Allah left for the Sublime Companion (al-rafiq al-a’la). Allah perfected and completed the deen and He revealed to him the last ayah which is His saying in Sura al-Baqara:
“信道的人们啊!你们应当敬畏真主,放弃你们尚未收取的利息(高利贷)。”[TMQ Baqarah: 278]
“O you who believe! Be afraid of Allah and give up what remains (due to you) from riba (usury)” [TMQ Baqarah: 278
随着这些内容,律法(ahkām)作为律法本身已经完备。《古兰经》以及使者的行为、言语和默许,包含了人类所有行为类型的裁定:从崇拜(‘ibadat),如礼拜(salah)和天课(zakat),到道德,如诚实与信任;从社会交往(mu’amalat),如谋杀与盗窃,到见证性证据(bayyinat),如作证的规则和书面文件的规则;以及政治事务,包括涉及内政的规则,如哈里发的规则和司法制度的规则,或涉及外交政策的规则,如战斗人员和条约的规则。由于沙里亚(Sharī’ah)规则的存在,教法学(fiqh)随之产生,因为教法学就是关于一整套沙里亚规则的知识。
With it the ahkām were completed in their capacity as ahkām. The Qur’ān and the actions, sayings and consent of the Messenger contain the rulings for all the types of actions that ensue from human beings; from the worships (‘ibadat) like prayer (salah) and zakat, from the morals such as honesty and trust, from the societal transactions (mu’amalat) such as murder and theft, from the testimonial evidences (bayyinat) such as the rules of testimonies and the rules of written documents and from the political affairs relating to the domestic policy such as the rules of the Khalifah and the rules of the judiciary, or relating to the foreign policy such as the rules of combatants and treaties. Due to the presence of the Sharī’ah rules jurispudence (fiqh) came into existence because fiqh is the knowledge of a body of Sharī’ah rules.